Now, after we've been through lawsuit filings, discovery, back-and-forth over injunctions and a trial and gotten a verdict... The patent office turns around and says: "On second thought, we shouldn't have issued that patent in the first place.", which itself will be reexamined and appealed and ... adding onto the existing pile of appeals.
I happen to think that the patent office's invalidation is correct, but even if you don't... this is no way to run a railroad. Successful reexaminations should be a rare, exceptional case in a properly functioning patent system. Instead, we have case after case turning on them (Oracle v Google, the Lodys reexamination requests, ...).
Here's a radical idea: Maybe the patent office should work harder to not grant patents it is likely to invalidate later.
This is probably a big part of why the USPTO sucks. If they had the resources to hire dozens and dozens of industry experts, and pay them aggressively competitive wages, they could probably fix most of the problems most of us have with the system as a whole.
In that system, only huge corporations will be able to afford to file patents that are worth anything. Everyone else gets screwed.
"So I had an idea the other day for a patent reform: property tax on patents.
As long as a company wants to keep the monopoly rights over a patented invention, they are taxed a percentage of the patent's market value each year. They can choose either to pay that tax or sell the patent to someone else.
The government would offer to buy any patent for its market value, using tax revenue gathered from other patents, in doing so putting the invention into the public domain.
This would discourage companies from building large 'defensive' patent portfolios, since they'd be expensive to maintain. It works for the 'lone inventor' scenario too, since the market value of a new, untried invention would be low.
Once a patent's value is proven by developing the patent, its value will rise. At some point, the benefit derived from the patent's monopoly rights will no longer be worth the cost, and the rational thing to do is sell the invention."
EDIT - I guess main point is - is the patent value declared by owner and does the value affect ability to litigate?
But I'm just a little guy. The darn property tax system is set out to screw me.
This is really the whole reason that corporations were invented: so that people could pool their resources together to achieve things that a single person could not achieve. In fact, they used to just be temporary and when the original stated project on the charter was complete then the corporation disbanded.
If a little guy company wants to own a patent under this scheme either a) they have to file the patent with a lower value so they can make the annual "property tax" but that may cap their wins in the future if it's infringed on. or b) get funding from investors to make the property tax payments. Or c) sell or license the patent to a larger entity that could benefit from it. In the case of (c) if it's truly as valuable as they say it is to the patent office then they should be able to find a suitable buyer.
Flat capped taxes on things produce market inefficiencies such as you see in the domain name arena: It costs very little to hold onto things that might be valuable one day. If instead there was a sliding scale to renew a domain based on it's value then you wouldn't really see domain squatters. They'd be forced to sell their domains to someone that could make more productive use out of the resource. Same with land and property taxes. And maybe the same for patents? I kind of like this idea.
And as far as the cost of entry, there are countless fields where patents could only conceivably be filed by someone with a lot of capital: auto, aerospace, medical, pharma, etc. There are certainly lone inventors working in these spaces trying to file patents but it's unlikely they're working on stuff where you need access to enormous wind tunnels or a medical testing population.
EDIT TO ADD: And aren't we as software developers going on and on about how software patents are worth anything? The cost of entry isn't very high at all and therefore they'd be worthless. Patents were supposed to protect the little guy from losing his large up-front research and development costs to the big established guys.
I always understood the purpose of patents was to provide incentive to bring trade secrets out into the documented open for the long-term benefit of society by having a great body of knowledge that anyone can use. So understanding of great inventions didn't disappear with the inventor. A short-term exclusivity on using the technology was the way to provide renumeration for being willing to share your discoveries with the public.
Rubber band scrolling is a cute, even useful, discovery, but it seems like it could be duplicated by just about anyone without any knowledge of what would otherwise be trade secrets. Is that worth documenting for future generations in this way given the high social costs of taking such documentation?
Would Apple really file their rubber-band scrolling patent at a value of $1bil, then pay some multiple of that per year when it's so easily avoided by their competitors? Probably not.
And if they do then more power to them. But it would put an upper bound of the amount of silly patents that a single large company could file and maintain (think IBM, MSFT, Apple, etc). Right now it costs a company hardly nothing to file all these and maintain them but they have a huge potential upside if your competitor steps on that patent landmine.
there isn't the same cost of entry for having a good idea.
There's probably a patent regime that actually would protect "the little guy" but it's long past time to let the USPTO wear that fig leaf over the current system. (Which is to say, I'm not saying you're wrong, I'm more saying, your point is inapplicable. And that's a shame.)
But by defensive usage I mean then at least you know someone else isn't going to patent your key stuff.
And once you've got funding/get acquired, the patent could be declared as higher value (and additional fees paid/validation done), and then future litigation to anyone who infringed after that date could be for higher amount.
Just like ROTC, Department of Education can create an Engineering Corps that allows tech students that receive government loans to pay back their debt in form of service.
What you're saying is, de facto, that they should pay examiners more -- enough to be competitive with that -- in the form of student loan repayment. But then where does the money come from, and if it's available then why not reduce turnover by just paying examiners that much whether they have student loans or not?
The patent system can be made more reasonable if we address the problem of bogus patents issued by an overwhelmed USPTO. This would be a step in the right direction.
All that said, if tech heads aren't willing to serve their country, even for a one lousy year, they really should stop complaining about the broken services.
Being paid more to approve more patents is a perverse incentive so egregious it's incredible the system was setup like it was.
No matter what the fees are, decreasing the percentage of patents granted will effectively cut the budget of the agency. Even upper management that is sympathetic to the cause of increasing patent quality is going to find raising standards very painful.
Their budget needs to be completely decoupled from their revenue.
Then they have an incentive for more applications, but little perverse incentive to approve them.
Of course, if they get a reputation for denying spurious claims then they won't get as many applications from spurious applicants, but that's true regardless of their funding source -- you can't produce a sensible budget without considering the number of applications they're expected to process. If the PTO's goal is budget maximization then they'll want to maximize the number of applications, which means providing incentives (in the form of low standards for patentability) for applicants to file more applications. You can't really fix that without creating some powerful incentives for not approving bad patents, like fining the head of the PTO $100K personally for every patent the PTO approved and the courts have to invalidate.
In no way are they a "victim."
> The inventor must make an oath or declaration that he/she believes himself/herself to be the original and first inventor of the subject matter of the application, and he/she must make various other statements required by law and various statements required by the USPTO rules.
Now, it would be VERY difficult to prove the oath was broken. But if it was, it's completely and 100% valid to hold the inventor (here Apple) responsible.
I'm not saying that's what's going on here (or in most cases of an overturned patent), just that it may be Apple's fault. It's not a black and white situation here...
I presume that that's not possible, but still, maybe it would give their collective heads a shake.
Unfortunately some 70% of reexaminations are confirmed to have some sort of issues. This is very shaky ground to be used to routinely afford millions/billions in damages and effectively "lock up" ideas that are obvious or unpatentable.
edit: add source
It is a good thing that a reexamination process exists to address bad patents when they are the focus of an expensive lawsuit.
1. The rejection was signed by a primary examiner (i.e., someone who has been at the USPTO for awhile and not a rookie) and was approved by a supervisory primary examiner who oversees reexamination proceedings.
2. The rejection is not final (see the unchecked box b near the top of the first page), therefore Apple can and will try to get the examiner to withdraw the rejection.
3. The rejection states that the next "Office action" is expected to be final. I would guess that unless Apple can make a compelling case for patentability OR amend claim 19 --- the only claim at issue in the Apple v. Samsung lawsuit --- to get around the prior-art rejection, the rejection of claim 19 will be made final.
4. If the examiner does make the rejection of claim 19 final, Apple can appeal to a three-person board of senior USPTO officials, nearly all of whom will be long-time patent examiners. If the board affirms the rejection, Apple can appeal to the courts.
5. On the merits, it's helpful to think of claim 19 as an infringement checklist: For that claim to be infringed, every element recited in that claim must be present in the accused product or process .
(Infringement analysis treats each patent claim as a multi-part AND statement ; the statement must return TRUE for infringement to exist.)
6. Claim 19 was rejected as being "anticipated." This means that in the examiner's view, every single element of claim 19 can be found in a single prior-art reference --- in this case a patent publication by Lira, and, separately, a patent issued to Ording --- and therefore the claim is unpatentable under 35 USC 102 .
(If claim 19 is thought of as an AND statement, then in the examiner's view, the AND statement returns TRUE when applied to the Lira reference, and also when applied to the Ording patent , and therefore claim 19 is unpatentable.)
7. Perhaps importantly, the examiner's rejections over Lira and Ording were made under subsection (b) of 35 USC 102; that is, the "effective dates" of these two prior-art references were more than one year before the effective filing date of the Apple patent in question. This means that Apple won't be able to try to "swear behind" the references, that is, prove that its invention was invented before the effective dates of the Lira and Ording references .
 Infringement of a claim can exist even if one or more claim elements are not literally present, as long as the accused product or process has a substantial equivalent of the missing element(s). Note: The doctrine of equivalents is tricky to assert, to prove, and to defend against. See generally http://en.wikipedia.org/wiki/Doctrine_of_equivalents.
 See generally http://www.oncontracts.com/how-patent-claims-work-a-variety-...
 See generally http://www.oncontracts.com/patent-validity-the-claims-and-st...
 See http://www.uspto.gov/web/offices/pac/mpep/s715.html --- scroll down to part II.A.
If there is a plus side, this may affect the passability of future patent requests but I figure this will be less likely to occur and more likely that the USPTO will simply stop invalidating patent review cases. For the good of the country (world) I hope I'm wrong.
Also, appeals haven't even been heard. This is far from over. Apple hasn't won until appeals are exhausted.
> ...U.S. Patent No. 7,786,975 on a "continuous scrolling list with acceleration," with named inventors Bas Ording, Scott Forstall, Greg Christie, Stephen O. Lemay and Imran Chaudhri.
Assignee: Apple Inc. (Cupertino, CA)
Filed: December 23, 2005
NOTE: Let us assume a patent is not obvious and too general, which many seem to be.
That doesn't sound like a sure thing to me.
At least if you operate within US borders. Guess how sexy that is looking these days?
(1 billion dollar sexy, if anyone was wondering)
There is all this hype that "Apple is Bad because they sued Samsung". But considering everything, they had no other choice legally. They had to make a case on some grounds, and these 5-6 patents were the only patents they can sue on. What would've you done to protect ideas you spent years refining?
Patents are not Trademarks. Patents are valid and legal even if you don't enforce them (where trademarks become invalid if you don't enforce them).
So no, they did have a choice. In fact, they had 3:
1. They could have not gotten the patent at all. This could open them up to legal liability if someone else got it and sued them.
2. They could have kept it for defensive purposes only. Using it if they were sued for patent abuse (and to prevent others from suing on this idea).
3. They could use it offensively.
They chose #3. So yes, they did have a choice.
Additionally, I love your choice of words for the final sentence:
> What would've you done to protect ideas you spent years refining?
I think it hits the key point. They didn't invent the vast majority of what they are suing over. They just refined it. They didn't invent multi-touch, they just polished it. Now, whether that polish is worth a patent is one thing, but the concept is not.
And that's the absurdity of it all. This is not about protecting invention. This is not about protecting innovation. It's about protecting market position.
And if there's a clearer abuse of the patent system than this, I'd love to see it...
and this is what I call abuse of system. Just look at the patents mentioned in the link. Something that paul or its company was not even remotely associated.
You mean the way that iOS 3, 4, 5 and 6 have stolen things from Android? Hell, the Book position sync thing that they introduced today copies from Android (and likely the Kindle).
Stop it with the FUD about this. The two phones are rectangular with rounded corners. Since when is that protected design? Look at the automobile market. Models are not distinguished by a generic look and feel, but by very very specific design details. None of which were copied between the devices.
Show me ONE major Apple feature that wasn't copied from someone else. The entire product is a culmination of ideas and innovation from others. Multi-touch? Done before. Large screen? Done. Icons? Done. Multi-Tasking? Don't even kid yourself. Notifications? Really?
What they did, and where their value is, is not in the concepts or innovation. It's in the level of polish that they apply. That's their competitive advantage.
And their legal battles are proof that they cannot compete on any other front other than polish. And since Android has been making leaps and bounds of improvements over the years, it's been threatening Apple's competitive advantage. And that's why Apple is suing.
It's the ultimate instance of the pot calling the kettle black.
And about this very article, it is just not correct. Invalidating patents take years. Article like this surface the internet just before any big apple event.
Because they've done it electronically, they've unfortunately been granted patents to design principles that are quite ancient. If this is allowed it sets a bad precedent.
I don't know why people build so much of hate for big corporates. Samsung is no different. If you see number of patents Samsung holds, you will be stunned. And most of them are something they never even implemented in their software remotely.
I could probably see many things in iOS/the iPhone worth patenting, but this is not one of them.
I'm not against Apple, I'm against ALL useless patents like this and probably many of Samsungs'.